Adaah v. Secretary of State for the Home Department
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 10 August 1992 |
| Citation / Document Symbol | [1993] Imm AR 197 |
| Cite as | Adaah v. Secretary of State for the Home Department, [1993] Imm AR 197, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 10 August 1992, available at: http://www.refworld.org/cases,GBR_AIT,3ae6b66f28.html [accessed 11 October 2017] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
ADAAH v SECRETARY OF STATE FOR THE HOME DEPARTMENT
Immigration Appeal Tribunal
[1993] Imm AR 197
Hearing Date: 10 August 1992
10 August 1992
Index Terms:
Deportation -- overstayer -- unrestricted rights of appeal -- proper approach for adjudicator to adopt -- necessity of demonstrating in determination that all relevant factors taken into account and balancing act performed. Immigration Act 1971 (as amended) s 3(5)(a); HC 251 paras 162, 164.
Held:
The appellant was a citizen of Ghana who had overstayed his leave. The Secretary of State had decided to initiate deportation proceedings against him pursuant to s 3(5)(a) of the 1971 Act (as amended). His period of stay in the United Kingdom meant that his rights of appeal were not restricted. An appeal was dismissed by an adjudicator. Before the Tribunal it was argued that the adjudicator had not demonstrably considered all the relevant factors, as required by the immigration rules. Held 1. It was not evident, as it should have been, from the adjudicator's determination, that he had adopted the correct approach. 2. Where the merits of the decision were to be reviewed by an adjudicator, he should start from the proposition that deportation was the normal course where a person had overstayed his leave, then take account of all the relevant factors and show that he had balanced those factors, as required by the rules. It was desirable, albeit not essential, to refer to the relevant rules. 3. The case would be remitted for rehearing.Counsel:
JO Acheampong for the appellant; T Wilkie for the respondent PANEL: Professor DC Jackson (Vice-President), AA Lloyd Esq JP, Major D FrancombeJudgment One:
THE TRIBUNAL: The appellant, a citizen of Ghana, appeals against a decision of an adjudicator (Mr MW Rapinet) dismissing his appeal against the decision of the Secretary of State to make a deportation order pursuant to section 3(5)(a) of the Immigration Act 1971. The appellant and his wife gave evidence before the adjudicator. In his determination the adjudicator set out the background to the case, summarised the submissions and the evidence before him. In considering the case, the adjudicator referred to the appellant's successes that he had achieved in his chosen career of banking, the fact that the appellant had lived here for more than 10 years, that he had made no attempt to return to Ghana to visit his parents and that he had brought his wife over to this country. The adjudicator noted that the appellant and his wife had two children born in this country (one aged six and one aged three), and that on the appellant's own evidence the educational facilities and medical facilities were better in this country than they would be in Ghana. The adjudicator found that it was the intention of the appellant at all times to seek to remain in this country, and this was underlined by the fact that he had been offered a permanent job with a bank here. However, the adjudicator at the same time commented that there was no evidence available to him of this employment. The adjudicator added that the bulk of submissions revolved around compassionate grounds connected with the lack of home in Ghana, the children and his wife's employment. The adjudicator thought that with the appellant's success in banking, he would have ample opportunity for employment in Ghana. The adjudicator concluded his determination: ". . . considering all the evidence before me as a whole and as would a jury I come to the view that on the balance of probabilities it was always the intention of the appellant to attempt to settle in this country and seek his career here. He has not completed an uninterrupted period of 10 years in this country, in fact only 7 years and 10 months of his period have been with leave to enter or remain. I do not consider that the compassionate grounds put forward by Mr Acheampong justify a determination that the appellant and his family should be given leave to remain here although if one child is to have an operation very shortly at King's College I would be prepared to recommend that the appellant and his family would be allowed to remain until the operation has been completed. For the reasons indicated above therefore I dismiss this appeal". Mr Acheampong contended that the adjudicator had approached the matter rather as if this was an application for leave to remain as a student. Mr Acheampong challenged the adjudicator's finding on the appellant's long-term intention to settle in this country, but even assuming that, argued Mr Acheampong, the adjudicator had given undue attention to it. The adjudicator had therefore, it is contended, failed to undertake the balancing exercise required. We agree with Mr Achaeampong's argument. In a deportation case where the merits of the decision are reviewable, an adjudicator must approach the matter in the context of the rules -- first, from the proposition that deportation is the normal course and, secondly, taking into account all relevant circumstances. It is mandatory for an adjudicator to take into account the circumstances listed in the immigration rules (HC 251 paragraph 164), and it is as well for an adjudicator to refer specifically to the appropriate rule. The failure to refer to the rules would not, of itself, mean that a determination is necessarily so flawed that it cannot stand. However, in this case, it does appear to us that the adjudicator gave undue weight to the intention to settle in this country (as the adjudicator found), and gave little, if any, weight to the continuous periods of residence and the appellant's accomplishments in his career. We are not satisfied that the determination shows the balancing exercise which would indicate to the parties that all relevant circumstances had, in substance, been taken into account. The determination, therefore, cannot stand. There was considerable discussion as to the consequence of our view of the determination. We heard argument from Mr Acheampong and Mr Wilkie as to whether this matter should be remitted for a hearing de novo or whether we should hear it ourselves. We concluded in the end that the case was not so far removed from the normal course of remittal that that course should not follow. The appeal is allowed insofar as the matter is remitted to an adjudicator other than Mr MW Rapinet for a hearing de novo.DISPOSITION:
Appeal remitted for rehearingCopyright notice: Crown Copyright
